We begin today’s roundup with Caroline Fredrickson, president of the American Constitution Society, and Norman L. Eisen, chairman of Citizens for Responsibility and Ethics, who write about Judge Kavanaugh’s extreme views on presidential liability and power:
In a 2009 law review article, Judge Kavanaugh argued that a sitting president should be able to defer civil suits and criminal prosecutions until after he leaves office and should be excused from having to answer depositions or questions during his term. He went so far as to advocate that Congress “consider a law exempting a president — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
It is hard to imagine that these extreme views weren’t part of Judge Kavanaugh’s appeal to President Trump, a man who is a defendant in several civil suits and the subject of at least one criminal investigation. According to media reports, the White House has looked at the judge’s views on indicting a sitting president.
Nor are these mere academic musings. During his service on the appellate court, Judge Kavanaugh has written opinions reflecting an expansive view of presidential power, and on several occasions he has expressed concern about executive branch agencies that are insulated from direct control by the president.
Here’s John Nichols at The Nation:
This combination of facts—a president who is under scrutiny choosing a Supreme Court nominee who he certainly knows is disinclined toward holding presidents to account—is not merely unsettling. Without an absolute and unequivocal commitment to recuse from any deliberations involving Trump’s alleged wrongdoing, which no one expects Kavanaugh to make, this nomination cannot possibly be seen by Democrats or Republicans, liberals or conservatives, as a credible choice to serve on the Supreme Court.
Brett Kavanaugh’s nomination must be understood as the product of a corrupt process that is, by its nature, disqualifying.
The New York Times writes about how he’ll dance around in hearings without providing much insight into his true views on the issues:
First, the questions everyone wants answered: What is his judicial philosophy? How does he approach interpreting the Constitution and statutes? Does he agree with the decision in landmark Supreme Court cases like, say, Brown v. Board of Education, which outlawed racial segregation in public schools, or Griswold v. Connecticut, which established a constitutional right to privacy? There’s no reason, despite their protestations, that nominees for the highest court in the land can’t give the public straight answers to these questions and many more like them — several, including Chief Justice Roberts himself, did so in the past.
But Senate Democrats and others who believe in the importance of an independent and nonpartisan judiciary also need to treat these hearings as a public-education opportunity. Where once these sorts of hearings served to inform Americans about the finer points of constitutional law, now they might be used to alert them to cynical tactics of power politics. For starters, that would mean making it clear that Monday’s nomination belongs not to Mr. Trump so much as to the conservative legal activists at the Federalist Society, who have spent nearly four decades building a movement to reshape the federal judiciary and rewrite whole sections of constitutional law.
And here’s Margaret Hartmann’s take:
Kavanaugh authored parts of the Starr report that laid out potential grounds for impeachment, including misleading the public and turning his press secretary and other White House officials into “unwitting agents of the president’s deception.”
That kind of thing happens every day in the Trump administration, but a few years later Kavanaugh decided he was too harsh on the president. In 2009, he wrote in the Minnesota Law Review that Congress should pass a law making the president exempt from criminal prosecution and investigation while in office. He explained that while working for President Bush he came to appreciate “how complex and difficult that job is,” and concluded that the president should not be burdened with such distractions. “I believe that the president should be excused from some of the burdens of ordinary citizenship while serving in office,” he said.
Later Kavanaugh clarified that the president should only be above the law while in office...
Here’s The Washington Post’s view:
On hot-button questions, Mr. Kavanaugh has trended conservative on issues such as abortion, indicating a narrow view of what constitutes an undue burden on a woman’s right to end her pregnancy, and the Obamacare contraception mandate, though his take on the mandate was somewhat more conciliatory than right-wing activists would prefer. A nemesis of the administrative state, he has frequently voted against the Environmental Protection Agency, arguing that programs to regulate greenhouse-gas emissions and cross-border air pollution went further than the law allowed; in each case he took an overly narrow view of the statute. Mr. Kavanaugh seems less willing to grant executive agencies leeway in interpreting Congress’s instructions than the Supreme Court has typically shown. Senators must explore how far this philosophy extends.
They should also press Mr. Kavanaugh on when, if ever, the court should overturn precedents. Because Federalist Society officials pre-vetted potential nominees, senators should inquire about concepts the society espouses, such as originalism and textualism. What happens when the original meaning of a law is not clear, or when there was dispute about its meaning at the time it was written?
And on a final, note, Eugene Robinson makes a controversial proposal...what do you think of it?:
Democrats need to fight a good, tough fight against Kavanaugh’s nomination, not just because the base demands it, or because Merrick Garland wasn’t even given a hearing, but because Kavanaugh will likely tilt the court to the right on a variety of issues, in ways that run counter to what the Democratic Party stands for. And if one or more Republicans do express serious doubts, then it will be important for all Democratic senators to stand together. It should not be a Democratic vote that puts Kavanaugh over the top.
But if there are no GOP defections, then vulnerable red-state Democratic senators should be released to vote however they must in order to get reelected. The party’s priority, at this point, should be regaining some measure of power. It cannot afford to sacrifice a precious Senate seat in the name of ideological purity — not if the battle is already lost.
Democrats should focus, in that case, on the one sure way of having more say over the next Supreme Court nomination: Win the Senate. And then, in 2020, win the White House.